1 On April 17, 1996, a
Secretary's Order was signed redelegating jurisdiction to issue final agency decisions under this statute
and the implementing regulations (29 C.F.R. Part 24) to the Administrative Review Board. Secretary's
Order 2-96 contains a comprehensive list of the statutes, executive order, and regulations under which
the Administrative Review Board now issues final agency decisions.
2 Indeed, the ALJ
found that it was "undisputed that Investigator Rioux provided Respondents with a copy of the
applicable regulations . . . which they could have readily reviewed if they wished to determine whether
they were in compliance. That they chose not to do this does not condone or excuse their affirmative
obligation to ensure that their pay practices are in compliance with the SCA. Vigilantes,
Inc. 769 F.Supp. 57, 62 (D. Puerto Rico 1991) (SCA contractor has affirmative duty to seek
advice from Department of Labor regarding pay practice compliance. . . ." See also,
29 C.F.R. § 4.188(b)(4), citing McLaughlin Storage, Inc. Decision of the ALJ, SCA
362-365, November 5, 1975, Administrator, March 25, 1976. D. and O. at 7. (Tr. 133, 139-140; CX
5).
The Act does not prescribe the length of the pay period. However, for purpose
of administration of the Act, and to conform with practices required under other statutes that may be
applicable to the employment, wages and hours worked must be calculated on the basis of a fixed and
regularly recurring workweek for the pay period. A bi-weekly or semimonthly pay period may,
however, be used if advance notification is given to the affected employees. A pay period longer
than semimonthly is not recognized as appropriate for service employees and wage payments at greater
intervals will not be considered as constituting proper payments in compliance with the Act.
(emphasis added).
Reliance on advice from contracting agency officials (or Department of Labor officials
without the authority to issue rulings under the Act) is not a defense against a
contractor's liability for back wages under the Act. Standard Fabrication
Ltd., Decision of the Secretary, PC-297, August 3, 1948; Airport
Machining Corp., Decision of the ALJ, PC-1177, June 15, 1973; James D.
West, Decision of the ALJ, SCA 397-398, November 17, 1975;
Metropolitan Rehabilitation Corp., WAB Case No. 78-25, August 2, 1979;
Fry Brothers Corp., WAB Case No. 76-6, June 14, 1977.
". . . Unless otherwise specified in the particular wage
determination, such as one reflecting collectively bargained fringe
benefit requirements, issued pursuant to section 4(c) of the Act, every
employee performing on a covered contract must be furnished the fringe
benefits required by that determination for all hours spent working on
that contract up to a maximum of 40 hours per week and 2,080
(i.e, 52 weeks of 40 hours each) per year, as these are the
typical number of nonovertime hours of work in a week, and in a year,
respectively. Since the Act's fringe benefit requirements are
applicable on a contract-by-contract basis, employees performing on
more than one contract subject to the Act must be furnished the full
amount of fringe benefits to which they are entitled under each contract
and applicable wage determination. (emphasis added);
§ 4.175 states:
(a) Determining the required amount of benefits. (1) Most fringe
benefits determinations containing health and welfare and/or pension
requirements specify a fixed payment per hour on behalf of each service
employee. These payments are usually also stated as weekly or monthly
amounts. As set forth in § 4.172, unless specified otherwise in the
applicable determination such payments are due for all hours paid for, including
paid vacation, sick leave, and holiday hours, up to a maximum of 40 hours per
week and 2.080 hours per year on each contract. (emphasis
added)
6 We note in this
regard, that the regulatory framework at § 4.187(e)(5) creates strict liability, i.e. a
limitation on the defense of "reliance" when such reliance rest upon the advice of
"contracting agency officials" or Department of Labor officials without final advisory
authority, for a contractor who fails to adhere to the payment requirements of their contract.